On approval of executors' third and final account; application to accelerate testamentary trust; and application for counsel fees.
[21 NJSuper Page 119] John W. Stone died July 24, 1944 in his 81st year, a resident of Trenton, N.J., leaving him surviving his widow, Emma J. Stone; seven children, viz: Susanna Robbins, Berdie Weeks, Marie Beck, John W. Stone, Jr., Lee J. Stone, Benjamin F. Stone, and Emma J. Stockton;
and a grandson, John W. Stone, son of the testator's deceased son, Gilbert S. Stone. Also additional grandchildren hereinafter mentioned whose parents are still living.
His will bearing date February 19, 1944 was duly probated in the Prerogative Court and letters testamentary thereon were issued August 4, 1944 to Emma J. Stockton and Benjamin F. Stone, two of the testator's children, as executors.
By his will the testator directs payment of his debts and funeral expenses, bequeaths the sum of $8,000 to his widow, and bequeaths and devises all of the rest, residue and remainder of his estate, real and personal, to four of his children in trust as set forth in the following portions of his will:
"THIRD: All the rest, residue and remainder of my estate, of whatsoever the same may consist and wheresoever situate, including all property over which I may have a general power of appointment at the time of my death, I give, devise and bequeath to my daughters, Mrs. Marie Beck and Mrs. Emma J. Stockton, and my sons, Benjamin F. Stone and Lee J. Stone, as Trustees, to have and to hold upon the following terms, conditions and trusts, that is to say:
(A) From and after one year from the date of my death to pay the net income from my estate to my wife, Emma J. Stone, for and during the term of her natural life, provided however, that if the net income exceeds the sum of Eight Thousand ($8,000.00) Dollars in any one year, then in that year to pay only the sum of eight thousand ($8,000.00) dollars to her from such income, and to add any excess of such income to the principal of my estate.
(B) From and after the death of my wife, Emma J. Stone, to pay the sum of Three Hundred ($300.00) Dollars annually to my sister, Kate Stone, for and during the term of her natural life.
(C) From and after the death of my wife, Emma J. Stone, to pay all the balance of the net income from my estate in equal shares to my children Susanna Robbins, Berdie Weeks, Marie Beck, John W. Stone, Jr., Lee J. Stone, Benjamin F. Stone, Emma J. Stockton and my grandson, John W. Stone, son of my deceased son, Gilbert S. Stone, for and during their respective lives.
(D) Upon the death of any of my said children or of my grandson, the said John W. Stone, I direct that their respective shares from which they have been receiving the income, or in the event that any of them shall predecease my wife, Emma J. Stone or myself, then the parent's share, shall be paid to his or her issue per stirpes and not per capita. I direct that my trustees and any successors thereto shall continue to hold the share of any principal of my estate that might fall due to any of my grandchildren until he or
she shall attain the age of thirty years. The income from such share however shall be paid to such child in the meantime and this provision as to the payment of income and principal shall apply to my grandson, John W. Stone, the son of my deceased son, Gilbert S. Stone. Should any of my children or my said grandson, John W. Stone, die without leaving issue, I then direct that my trustees distribute the share to which such child or grandchild is entitled equally among my surviving children and my said grandson and the children of any deceased child who shall take in equal portions the share which their parent would have taken if living."
The executors have filed three accountings, all duly approved by the court. The third and last accounting covers a period from November 1, 1948 to December 31, 1951 and was approved and allowed by this court on June 6, 1952. And a supplemental accounting covering the period from January 1, 1952 to June 10, 1952 was approved and allowed by this court on June 27, 1952.
The executors' third accounting showed on hand a balance of assets, including principal and interest, of the total value for accounting purposes of $648,752.57; gross income collected during the period covered by the third accounting of $257,114.33; increases realized on sale or redemption of securities and profits on sales of real estate aggregating $61,176.94; and the supplemental accounting covering the period from January 1, 1952 to June 10, 1952 showed additional items of gross income collected aggregating the further sum of $34,538.66 and further profits on sale or redemption of securities and items of real estate aggregating $11,405.13.
The complaint annexed to the third and final account of the executors, in addition to asking the approval of the account and the allowance of executors' commissions and attorney's fees, seeks further relief under the following allegations.
"The plaintiffs further allege that:
(1) The last Will and Testament of John W. Stone, dated February 19, 1944 provided among other things in Paragraph 3 (C)
'From and after the death of my wife, Emma J. Stone, to pay all the balance of the net income from my estate in equal shares to my children Susanna Robbins, Berdie Weeks, Marie Beck, John W.
Stone, Jr., Lee J. Stone, Benjamin F. Stone, Emma J. Stockton and my grandson, John W. Stone, son of my deceased son, Gilbert S. Stone, ...